Yesterday, Barb's pundit roundup pointed us to this Los Angeles Times editorial by John C. Eastman, conservative constitutional law scholar and Dean of Chapman University School of Law, as well as this brave rebuttal in the same paper (taking on one's Dean publicly is cheeky!) by Lawrence Rosenthal, one of his faculty members.
The topic was Eastman's decision to hire John Yoo as a Visiting Professor for the current semester.
We have a lot of lawyers here and it's Friday night, generally a slow time: I'd like to see how quickly and well people here can take apart his defense of Yoo and his Torture memos. Thanks to the Obama Administration for releasing them last month.
Whatever else your feelings about Yoo's writings -- and I hope that you'll express them -- Eastman starts out with one of the most ungracious actions I ever remember seeing by a Dean in print: to defend one faculty memeber, he throws another faculty member under the bus. A second Visiting Professor at Chapman this year is International Law Professor Richard Falk, who is among other things an Editorial Board member at the Nation, a former United Nations Rappprteur on Palestinian Human Rights (whose statements have elicited criticism from some pro-Israeli groups), and an author of various important books on issues of peace, war, and international law. Eastman, here and in other statements, essentially equated the controversial nature of the Falk appointment with that of Yoo. That is -- let's be polite and call in "questionable."
I've styled the rest of this diary as a not-very-well-crafted final exam (written by a diffident professor) in law school:
Eastman embraces the controversy and debate that Yoo's presence has brought to Chapman, which is certainly a fair argument to make, whether or not I buy it here. Then he continues that in his view
the legal positions Yoo advanced in the post-9/11 memos are supported -- some well supported; others at least arguable -- by constitutional text, historical understanding and legal precedent. In fact, many of those positions were shared by Clinton administration officials now serving in the Obama administration.
All right then: let's go. Pop quiz time:
(1) Eastman notes that Yoo argued that the Geneva convention does not apply to unlawful combatants who target civilian populations and otherwise violate the rules of war. He does not defend the substance of the claim, but notes that Eric Holder said in a 2002 CNN interview that "It seems to me that given the way in which they have conducted themselves, however, that they are not, in fact, people entitled to the protection of the Geneva Convention. They are not prisoners of war."
Please discuss the validity of Yoo's claim, the legal relevance of then-private-attorney Holder's opinion in a 2002 interview to its validity, and whether it justifies respecting Yoo's legal writing enough to justify honoring him with an Assistant Professor appointment in 2009.
(2) Eastman notes that Yoo advanced the controversial legal position that the provisions of the Bill of Rights do not apply outside United States territory, particularly during wartime. He says that Yoo justified this position by citing 2000 D.C. Circuit Court of Appeals case Harbury v. Deutsch, in which a three-judge panel with a two liberal judges unanimously held that torture of "an alien rebel commander leading an attempt violently to overthrow a foreign government," by a agents paid by the CIA and acting either at its request or with its full knowledge, did not violate the Fifth Amendment right to due process. (Note: these were allegations considered provisionally true, without proof, during an motion to dismiss.) Eastman makes a point of noting several times that this behavior took place during the Clinton Administration.
Please discuss whether Harbury v. Deutsch (note: link is to a 33-page PDF; see pages 12-17 for discussion of extraterritoriality and the Fifth Amendment) could reasonably have been used to justify the programs that Yoo was defending in his memoranda, and whether Eastman seems to comprehend the actual scope of what it was Yoo was defending.
(3) Eastman defends Yoo's argument that the Fourth Amendment did not limit the President's power as Commander-in-Chief power to conduct surveillance of enemy agents on our soil, in time of war, without a warrant. His defense is that Lewis Powell's 1992 opinion holding that the 4th Amendment requires a warrant for electronic surveillance of U.S. citizens in domestic security matters – and whatever happened to that? – reserved opinion on that issue (which the Court did not address) and noted that the President had enhanced powers as C-in-C. Eastman claims that it was therefore a close question, rather than, well, one not raised by the facts at hand.
Please discuss whether it is reasonable to conclude that, based on dicta in this opinion, for Yoo to have defended the constitutionality of the actions actually being contemplated at the time he wrote those memos regarding the constitutionality of those actions, and whether a writer in 2009 is right to justify them in light of what we have learned since.
(4) Eastman notes that Justice Department lawyers faced unprecedented legal questions and were appropriately and unsurprisingly aggressive in offering legal interpretations justifying how executive powers could legally be expanded "to prevent future attacks." He compares them favorably to other previous Democratic Administrations:
In the end, the president's options were more thoroughly vetted by lawyers than at any wartime era in our nation's history. There were no wholesale detentions based on race, such as occurred under President Roosevelt in World War II. No systematic suppression of antiwar speech, such as under President Wilson in World War I.
Discuss the legitimacy of this analysis and what if anything Eastman is leaving out of it.
(5) Eastman concludes with a frontal assault on critics of Yoo:
That there is a great deal of disagreement about the constitutionality of the lines the lawyers drew is also no surprise -- the Constitution deliberately keeps the lines between congressional and executive wartime powers, and between those branches and the courts, deliberately ambiguous. But disagreement about closely contested issues hardly supports the exaggerated claims that Yoo and his colleagues shredded the Constitution, or that he should not be teaching law.
You need not discuss this one; just create an onomatopoetic word describing your reaction to it.
I'll see what others have to say and then (if I get enough response here) weigh in later.